Boyle's "Public Domain" -- a book that balances accessibility with thoroughness; criticism with solutions

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Last month, I wrote about the release of Jamie Boyle's The Public Domain: Enclosing the Commons of the Mind a new book by one of copyright's leading and most erudite scholars. I've just finished reading my review copy (you can get a free copy too -- the book is CC licensed and free to download) and I wanted to drop in a short review.

All my early excitement about this book's release was absolutely justified. This is a hell of a book. It starts with a thorough, charming, and extensive grounding in the history and contours of copyright, moving from the 17th century to the DMCA. This is familiar ground, but Boyle gives it new life with witty asides, novel comparisons and clear writing.

The second section of this book is where it really sings, though. This is the case studies, particularly the history of the "George Bush Doesn't Care About Black People," the scathing political rap spawned by outrage over FEMA's response to, and the press coverage of Katrina. Boyle traces the musicological history of this track all the way back to Ray Charles's appropriation of contemporary gospel compositions to invent soul music (over the howls of protest of the gospel singers he ripped off) to the changes wrought to hip-hop over bad US court judgements on sampling, to the legal safe harbors that allowed YouTube to flourish, giving a home to the fan videos for a political song (noting that Ben Franklin loved to rewrite the words to popular songs to make fun of political scandals) to the unmitigated hypocrisy exhibited by Jib-Jab when they used the DMCA to threaten one of the video-makers for sampling their own remix of Woody Guthrie's "This Land..." The point of this remarkable journey is to illustrate just how complicated and "unoriginal" the most original creativity is, how much even trail-blazing innovators rely on borrowing from other artists to invent their new creations.

Following on this are other case studies, including a marvellous report on the failure of the European "Database Right" -- a kind of copyright extended to facts in databases that was meant to spur investment and innovation, but instead crippled and shrivelled Europe's database industry.

From there, Boyle moves into solutions -- hacks around the law like Creative Commons and then a comprehensive, simple program for reforming copyright law to use empirical evidence to figure out when exclusive rights make for more vibrant creativity and when they stand in creativity's way, and to apportion (and adjust) copyright accordingly. He cites successful empirical studies and talks about how their methodologies could be adapted for wider use. He describes this as an "evidence-based" approach to copyright, one grounded on the goal of ensuring the most creativity, rather than the most reward for the creators that last year's copyright turned into winners.

Finally, Boyle returns to the theme that has dominated his career: the idea that copyright needs an "environmental movement" -- a unifying principle that ties together all the people who want to get a better, more balanced world of copyrights and patents and trademarks in the same way that the notion of "ecology" brought together people who cared about wildlife, about water quality, about smog, about the ozone layer, etc, together for the first time.

All told, you'd be hard pressed to find a book that better-balances accessibility with thoroughness, or one that carries so many constructive, reasonable, moderate and achievable proposals for making a system that will improve the lot of creators and the public everywhere.

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He cites successful empirical studies and talks about how their methodologies could be adapted for wider use. He describes this as an “evidence-based” approach to copyright, one grounded on the goal of ensuring the most creativity, rather than the most reward for the creators that last year’s copyright turned into winners.

What exactly is the unit of measure for creativity, and how is it measured?

The conventional defense of the patent system is that it is essential in order to stimulate creativity. … Costs must be considered, but the benefits that flow from the patent system are only half the story, since the system also comes with costs. Even if we are going to adopt a wealth-maximization criterion (which is, admittedly, problematic), we must compare the costs to the benefits to know whether the system is worth having at all.

If costs are not taken into account, there are no limits to what could be done to encourage innovation. Some, for example, suggest replacing the patent system with a federal commission that gives taxpayer-funded rewards to inventors deemed worthy. “Under a reward system, innovators are paid for innovations directly by the government (possibly on the basis of sales), and innovations pass immediately into the public domain. Thus, reward systems engender incentives to innovate without creating the monopoly power of intellectual property rights.”

To note that there are costs is not to claim that the patent system costs too much. In fact, there is no real way to accurately know what these costs are, which is why we should leave it to the market and to entrepreneurs themselves to assess and forecast costs and benefits, and pay the price or reap the reward for their judgment. A pure market in this case would be one that does not award a monopoly privilege to a person or institution merely because a paper is filed with the government.

In short, if you can’t even measure the cost-benefit analysis for whether so-called “intellectual property” laws do more good than harm, how can there be any justification for “incentivizing innovation” with copyrights and patents to begin with? It’s totally arbitrary.

In short, if you can’t even measure the cost-benefit analysis for whether so-called “intellectual property” laws do more good than harm, how can there be any justification for “incentivizing innovation” with copyrights and patents to begin with? It’s totally arbitrary.

Well, we do have history. The United States started with a 14 year copyright+14 year extension. we extended it every now and then. 28+28 years by 1909. “life-plus-50” by 1976. “life-plus-70” by 1998.

The basic question is this: Does history show longer terms causing authors to create more works?

the short answer seems to be that authors will create works with much shorter terms than we have now. Mark Twain wanted perpetual copyright, but for some strange reason he still wrote with a 42 year copyright term, become world famous, and make a lot of money.

Which pretty much exemplifies the problem. You can’t let authors dictate the price that the public must pay. Cause some authors will never be satisfied with anything other than infinity-minus-one.

And you can’t simply let the public dictate how much they will pay authors without authors having any say either. (cause some members of public will never be satisfied with anything other than ZERO intellectual property laws.)

We’re missing a way to model the negotiation that needs to occur between authors and public.

If we realize that creating works is a service and copyright is a reward offered to those who provide the service, then we can see the solution has already been figured out in other markets. Copyright is a bounty. The public offers a bounty to whoever will provide a service. If no one provides teh service, the public must raise the bounty. Once someone starts providing the service and collecting the bounty, there is no reason to raise teh bounty after that.

Mark Twain wrote under a 42 year copyright term. Why would the public pay more than 42 years? 42 years was enoungh incentive to get one of the most famous American authors to write books that we still read a century later.

Some might argue that technology completely alters the formula, for example that movies have completely different economic forces acting on them, but to prove themselves, they would simply have to show that most movies don’t break even until after 42 years of copyright protection.

And the reality is if a movie needs 42 years to break even, it’s a dog of a movie.

Authors are bounty hunters.
Copyright is the bounty.
The bounty should be set just high enough to get the job done, but need not be set any higher than that.

Why are you paying for a copy of a book that’s already written? Doesn’t it make more sense to pay someone to write a new book that hasn’t been written yet?

What? I don’t get what you’re saying here. Are you suggesting that books already written and printed aren’t worth paying for? Or that if one wants something to read, one should pay an author up front, sight unseen, and then go away and wait for them to write it?

People who pay money for books before the books are written are generally called “publishers”. People who pay money for books after the books are written are generally called “readers”.

What? I don’t get what you’re saying here. Are you suggesting that books already written and printed aren’t worth paying for?

Yes, because copies of any set of information are ostensibly free thanks to cheap computers and telecommunications. (This is a feature, not a bug.)

Or that if one wants something to read, one should pay an author up front, sight unseen, and then go away and wait for them to write it?

Basically, because that’s called an investment, and it’s what happens every time everyone else gets hired — based on the strength of what you’ve done in the past, presumably the employer will like what you create for them in the future.

I imagine there are many people who would invest in, say, the next Radiohead album, or the next book by Cory.

People who pay money for books before the books are written are generally called “publishers”. People who pay money for books after the books are written are generally called “readers”.

That’s like saying publishers are warehouses; but warehousing is dead. (Just ask Amazon, eBay, Toyota, et. al. c.f. just-in-time delivery) People can create ad-hoc “publishers” (i.e. underwriters) using dominant assurance contracts. (This is actually very much already like how most films are made, already.)

Assurance contracts, also known as provision point mechanisms are a financial technology that facilitates the voluntary creation of public goods and Club goods in the face of the free rider problem.

Assurance contracts operate as follows:
In a binding way, members of a group pledge to contribute to action A if a total contribution level is reached (often a monetary threshold, or a quorum of N members making the same pledge). If the threshold level is met (perhaps by a certain expiration date), the action is taken, and the public good is provided; otherwise, the parties are not bound to carry through the action.

No, it’s like saying that publishers employ editors, whose job it is (she said, idealistically) to work with writers on preparing books for publication.

I’m sure there are plenty of people who’d proactively invest in Cory’s next book. I’m also sure that a lot of those people would also happily give a bookseller money in exchange for a copy of an already-written, already-edited, already-published book.

What I don’t understand is your apparent position (if I’ve misunderstood you, please explain) that there’s no point in paying for a book that already exists, “ostensibly free” or not. Like many others, I downloaded Little Brother as soon as it was available. Like many others, I also purchased a copy in hardback. Why? Because I want to own a copy that’s durably bound and nicely presented. Because I know that writers who don’t get paid for their work are likely to be forced to do something else that does pay.

Doesn’t it make more sense to pay someone for something that hasn’t been written yet? Well, if I want to read “the next thing Cory Doctorow puts out”, yes. But if what I want to read (and own, and know that the creator has received something in return for) is Little Brother, no, it doesn’t.

Because I know that writers who don’t get paid for their work are likely to be forced to do something else that does pay.

Nothing precludes you from donating extra money to Cory because you appreciate his old works so much.

Because I want to own a copy that’s durably bound and nicely presented.

I’m not arguing against the printing of tangible goods — people still buy pulped dead-tree versions of works that are out of copyright — but the exercise of monopoly using the power of law to prohibit everyone else from using their own printing press, or laser printer, to make their own version, just to subsidize one very particular business model.